Official blog of the American Civil Liberties Union (ACLU) of Pennsylvania

Wednesday, May 30, 2012

Noxious Creeping: Amending the PA Wiretap Act (Part I)

“(T)he erosion of freedom rarely comes
as an all-out frontal assault but rather as a gradual, noxious creeping,
cloaked in secrecy, and glossed over by reassurances of greater security.” –
Senator Robert Byrd

A group of prosecutors in Pennsylvania is seeking a major
expansion of government surveillance power. They are advocating for House Bill 2400, and
we expect its supporters to try to fast-track the bill through the legislature
before it can get a thorough review from lawmakers and the public. The bill
would make about a dozen changes to current law, many of which seriously
undermine Pennsylvanians’ privacy. We’re discussing the worst of them in a
series of posts. In this post, I discuss the proposal to allow law enforcement
to secretly intercept and send text messages using cell phones they obtain from
civilians.

Part 1: Who is that text message really
from?

Overturning Cruttenden

One of the changes they want would overturn the Pennsylvania
Superior Court’s decision in Pennsylvania
v. Cruttenden. The case involved an
informant who turned his cell phone over to police when he was caught with
drugs in his car. The police intercepted
text messages from the informant’s alleged supplier and sent replies without
revealing their identities. The supplier, thinking he was still talking to the
informant, set up a meeting. But when he got there, instead of meeting the
informant he was arrested and charged with criminal attempt, conspiracy, and
other offenses. On appeal, the Superior
Court held that police violated the Wiretap Act when they failed to get a court
order for using the cell phone. If police want to take a person’s cell phone,
intercept text messages, and send text messages from the phone while pretending
to be the intended recipient, they must get a court to say okay.

Prosecutors want to pass a law to overturn the case. They want to allow law enforcement to receive
and send text messages on any phone that they “lawfully obtain.” They want law
enforcement to be able to do this without any court oversight and without
revealing their identities to the people they are communicating with.

Even if you think police should be allowed to use a phone
that an informant voluntarily hands over for police to use, the proposed bill
would go much farther. Police could intercept and send messages on any phone
they “legally obtain.” This appears to allow police to seize the phones of
people they arrest, and then use those phones to try to trick others into
sending incriminating messages. It even
seems to create an incentive for law enforcement to arrest people in order to
seize and use their phones.

Prosecutors say that the court order requirement gets in the way of law
enforcement. That’s true. “Getting in
the way of law enforcement” is also the purpose of the Fourth Amendment and
much of the Wiretap Act. It would be convenient for law enforcement to
be able to read any text message anyone sends.
But we don’t want to live in a society where we are never sure if our
private text messages will end up in a police dossier or if text messages we
receive come from our friends or from the government.